Doc 99 Order Re Def's Post-Dismissal Motions

ORDER RE: DEFENDANT’S POST-DISMISSAL MOTIONS ~ 1

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

ELF-MAN, LLC, Plaintiff, v. RYAN LAMBERSON, Defendant.

NO: 13-CV-0395-TOR

ORDER RE: DEFENDANT’S POST-DISMISSAL MOTIONS

BEFORE THE COURT are Defendant’s Motion for Attorney Fees (ECF

No. 75), Motion for Sanctions Pursuant to 28 U.S.C. § 1927 (ECF No. 78), and

Motion for Rule 11 Sanctions (ECF No. 80). These matters were submitted for

consideration without oral argument. The Court has reviewed the briefing and the

record and files herein, and is fully informed.

BACKGROUND

This case involved alleged copyright infringement. In the motions now

before the Court, Defendant Lamberson moves for attorney fees and costs pursuant

Case 2:13-cv-00395-TOR Document 99 Filed 10/31/14


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to 17 U.S.C. § 505, RCW 4.84.250, and Fed. R. Civ. P. 54(d)(2)(A), and an award

of costs pursuant to 28 U.S.C. §§ 1920, 1923; and moves for sanctions pursuant to

28 U.S.C. § 1927 and Fed. R. Civ. P. 11. For the reasons explained below, the

Court denies Defendant’s motions for sanctions pursuant to Rule 11 and 28 U.S.C.

§ 1927, and grants in part Defendant’s motion for attorney fees.

FACTS AND PROCEDURAL HISTORY

Plaintiff Elf-Man, LLC, is a limited liability company that produced the

motion picture at issue in this matter, Elf-Man. Plaintiff originally sued Defendant

Lamberson, along with twenty-eight other defendants,1 on March 22, 2013, in

Cause No. 13-CV-0115-TOR. On October 18, 2013, Defendant Lamberson moved

to sever the claims against him. The Court granted the motion on November 21,

2013, and opened the above-captioned case.

The First Amended Complaint alleges that Defendants, including

Lamberson, used BitTorrent, an interactive peer-to-peer file transfer technology

protocol to copy, download, share, and upload Plaintiff’s motion picture, or

permitted, facilitated, or promoted such conduct by others. Peer-to-peer networks,

1 Defendants, originally identified as “Does,” are individual computer users,

identified by their IP addresses assigned by Internet Service Providers (“ISPs”) on

the date and time at which the infringing activity was observed.



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in their most common form, are computer systems enabling users to make files

stored on each user’s computer available for copying by other users, to search for

files stored on other users’ computers, and to transfer exact copies of the files from

one computer to another via the Internet. The complaint alleges that Plaintiff has

recorded each Defendant identified as actually copying and publishing Plaintiff’s

motion picture via BitTorrent, as Plaintiff’s investigator has downloaded the

motion picture from each Defendant. Plaintiff alleges that, upon information and

belief, each Defendant was a willing and knowing participant in the file transfer

“swarm” at issue and engaged in such participation for the purpose of infringing

Plaintiff’s copyright.

Plaintiff sued Defendants, claiming copyright infringement, contributory

infringement, and indirect infringement of copyright. Plaintiff’s First Amended

Complaint requests damages of $30,000 from each Defendant pursuant to 17

U.S.C. § 504(c)(1) for its claims of infringement and contributory infringement,

and damages of not more than the statutory minimum of $750.00 on its indirect

infringement claim. Plaintiff also requests entry of permanent injunctions to enjoin

each Defendant from directly, contributorily, or indirectly infringing Plaintiff’s

rights in Plaintiff’s motion picture, and reasonable costs and attorney fees.

Defendant filed an Answer to Plaintiff’s Amended Complaint on December

17, 2013, without awaiting a ruling on the motions to dismiss pending in Cause



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No. 13-CV-0115-TOR. The Court held a telephonic scheduling conference on

December 19, 2013, and issued a Scheduling Order later the same day. ECF Nos.

16, 17. Defendant filed an Amended Answer on January 3, 2014. ECF No. 18.

On January 17, 2014, Plaintiff moved to dismiss several of the counterclaims

and affirmative defenses asserted in Defendant’s Amended Answer. ECF No. 20.

Incorporated into this motion was a special motion to strike Defendant’s state law

counterclaims for defamation, tortious interference with business relationships, and

for violations of the Washington Consumer Protection Act (“CPA”) pursuant to

RCW 4.24.525, the Washington “Anti-SLAPP” Act. Three days later, Defendant

filed a motion seeking to (1) withdraw its Amended Answer; (2) dismiss Plaintiff’s

Amended Complaint for failure to state a claim under Rule 12(b)(6) in light of (i) a

ruling issued by Judge Lasnik in a companion case filed in the Western District of

Washington, and (ii) the possibility that this Court might issue a similar ruling on

the motions to dismiss pending in Cause No. 13-CV-0115-TOR; and (3) as an

alternative to dismissal of the Amended Complaint, for leave to file a Second

Amended Answer. ECF No. 21.

On January 22, 2014, the Court granted in part and denied in part the

motions to dismiss in Cause No. 13-CV-0115-TOR. This ruling dismissed, with

prejudice, Plaintiff’s alternative cause of action for “indirect infringement” of its

copyright. Elf-Man, LLC v. Charles Brown, et al., No. 13-CV-0115-TOR (E.D.



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Wash. Jan. 22, 2014). In light of this ruling, Defendant withdrew the portion of his

motion to dismiss (ECF No. 21) seeking to withdraw his Amended Answer and

dismiss Plaintiff’s Amended Complaint. Defendant did, however, indicate that he

still sought leave to file a Second Amended Answer. ECF No. 22.

On March 17, 2014, Defendant filed his Second Amended Answer, which

alleges two counterclaims: (1) declaration of non-infringement, and (2) declaration

of copyright invalidity and unenforceability. ECF No. 35. On March 31, 2014,

Plaintiff moved (1) to dismiss Defendant’s counterclaims pursuant to Fed. R. Civ.

P. 12(b)(6) for failure to state a claim upon which relief can be granted; (2) to

dismiss counterclaims and/or strike affirmative defenses based upon allegations of

fraud pursuant to Fed. R. Civ. P. 9(b); and (3) to strike pursuant to Fed. R. Civ. P.

12(f) material in Defendant’ Second Amended Complaint on grounds that it is

redundant, impertinent, and/or scandalous. ECF No. 37. Before the Court ruled on

that motion, Plaintiff’s initial counsel, Maureen VanderMay, moved to withdraw as

attorney. ECF No. 55. Shortly thereafter, Plaintiff’s new counsel moved to

dismiss with prejudice all claims asserted in this case. ECF No. 59. In response,

Defendant Lamberson consented to dismissal with prejudice provided that Plaintiff

pay costs and reasonable attorney fees in advance. ECF No. 67. The Court

dismissed all claims with prejudice and all counterclaims without prejudice, but



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noted that it would consider Defendant’s timely filed motion for attorney fees and

costs, if any. ECF No. 73.

In the motions now before the Court, Defendant Lamberson moves for

attorney fees and costs pursuant to 17 U.S.C. § 505, RCW 4.84.250, and Fed. R.

Civ. P. 54(d)(2)(A) and an award of costs pursuant to 28 U.S.C. §§ 1920, 1923;

and moves for sanctions pursuant to 28 U.S.C. § 1927 and Fed. R. Civ. P. 11.

DISCUSSION

A. Motion for Attorney Fees (ECF No. 75)

Defendant Ryan Lamberson moves the court for an award of attorney fees

pursuant to 17 U.S.C. § 505, RCW 4.84.250, and Fed. R. Civ. P. 54(d)(2)(A); and

an award of costs pursuant to 28 U.S.C. §§ 1920, 1923. The request for costs

under 28 U.S.C. §§ 1920, 1923 (ECF No. 77) will be addressed by a separate order

pursuant to Local Rule 54.1. Thus, the Court here will only consider the other

grounds for awarding attorney fees and costs.

The Copyright Act contemplates an award of attorney fees and costs:

In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney's fee to the prevailing party as part of the costs.

17 U.S.C. § 505. Prevailing defendants as well as prevailing plaintiffs may be

awarded attorney fees. Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994).



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However, “attorney’s fees are to be awarded to prevailing parties only as a matter

of the court's discretion.” Id. “‘There is no precise rule or formula for making

these determinations,’ but instead equitable discretion should be exercised ‘in light

of the considerations we have identified.’” Id. (quoting Hensley v. Eckerhart, 461

U.S. 424, 436-437 (1983)).

In determining whether fees should be awarded, courts may consider a non-

exclusive list of factors, including degree of success obtained, frivolousness,

motivation, objective unreasonableness (both in the factual and legal components

of the case), the need in particular circumstances to advance considerations of

compensation and deterrence, and whether the chilling effect of attorney fees may

be too great or impose an inequitable burden on an impecunious party. Ets-Hokin

v. Skyy Spirits, Inc., 323 F.3d 763, 766 (9th Cir. 2003) (citing Fogerty, 510 U.S. at

534, n. 19); see also Wall Data Inc. v. L.A. Cnty. Sheriff's Dep't, 447 F.3d 769, 787

(9th Cir. 2006).2

2 There is no single set of factors considered by courts in this circuit. For example,

see the Ninth Circuit’s articulation of the factors in 2003:

Supreme Court identified the following non-exclusive list of factors to guide the award or denial of attorney's fees: “frivolousness, motivation, objective unreasonableness (both in the factual and in the legal components of the case), and the need in particular circumstances to advance considerations of compensation and deterrence.” The Ninth Circuit has added as additional considerations: the degree of success obtained, the purposes of the Copyright Act, and



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Examining the relevant factors in turn, this Court determines an award of

fees is appropriate. First, Plaintiff dismissed all its claims against Mr. Lamberson;

thus, Defendant is the prevailing party. Moreover, Defendant’s success was

unqualified, as the dismissal against him was with prejudice. Second, from this

record, the Court has no basis from which to determine that Plaintiff’s claims were

frivolous. The case was dismissed short of trial, so all the evidence is not before

the Court. Third, Defendant contends the case against him was baseless, but the

Court notes that Plaintiff has obtained stipulated relief against others on virtually

the same allegations as Plaintiff asserted against Defendant. Fourth, whether

Plaintiff’s claims were therefore unreasonable is likewise not determinable from

this record. Plaintiff requested damages of $30,000—the full amount of statutory

damages available under the Copyright Act for Lamberson’s alleged infringement.

whether the chilling effect of attorney's fees may be too great or impose an inequitable burden on an impecunious plaintiff.

Ets-Hokin, 323 F.3d at 766 (internal citations omitted). And see:

A district court may consider (but is not limited to) five factors in making an attorneys' fees determination pursuant to § 505. These factors are (1) the degree of success obtained, (2) frivolousness, (3) motivation, (4) reasonableness of losing party's legal and factual arguments, and (5) the need to advance considerations of compensation and deterrence.

Wall Data Inc., 447 F.3d at 787.



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In the end, Plaintiff received nothing from Mr. Lamberson, and now nothing more

can be said. From Mr. Lamberson’s perspective, he has suffered the unjustified

expense of defending himself for something he did not perpetrate and for which he

should be compensated. Plaintiff may contend the allegations were not unjustified,

but in the end Plaintiff elected not to pursue them further. Because Plaintiff

elected to cease its action short of proving its entitlement to relief, this factor

weighs heavily in favor of awarding Defendant fees as the prevailing party.

Finally, awarding fees to Defendant will not have a chilling effect on Plaintiff’s

other copyright claims. Plaintiff can pursue its valid and well-founded copyright

claims with vigor, seeking both damages and fees where warranted. But Plaintiff

cannot exact a pound of flesh simply by making defendants caught in its wide net

expend attorney fees to defend themselves, perhaps unjustifiably. This factor

weighs in favor of an award of attorney fees.

Accordingly, the Court finds an award of fees appropriate. This Court will

now consider whether Defendant’s proposed fees are reasonable.

B. Amount of Attorney Fees Requested Defendant requests the Court award $206,580 in attorney fees for defending

this case. ECF Nos. 92 at 8; 75 at 7-8. Other than to recite the total hours

expended, counsel has not provided a sufficiently detailed justification for the

hours claimed. See ECF Nos. 76 at 8-10; 68 at 11-14; see also ECF No. 68 at 11



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(“I can provide more detail on these billing if the court requests, but here is a

summary of the billing entries and the time and fees logged.”).

Plaintiff has contested Defendant’s fee request contending that he has failed

to provide adequate documentation and justification for the exorbitant fee request.

See ECF No. 83 at 9. Plaintiff seeks to “carefully scrutinize and challenge each

entry made in the case for date, description, person allegedly performing the work

and time spent to ensure that all time was justified, relevant to the particular issues

in this case, and not redundant.” Id. at 10. Plaintiff also disputes the claim for

costs, without corresponding copies of the receipts.

In determining reasonable hours, counsel bears the burden of submitting

detailed time records justifying the hours claimed to have been expended.

Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986). Illegible,

abbreviated time records, submitted in a form not reasonably capable of evaluation,

do not satisfy the “burden of submitting detailed time records justifying the hours

claimed.” Stewart v. Gates, 987 F.2d 1450, 1453 (9th Cir. 1993) (citing Chalmers,

796 F.2d at 1210). It is an abuse of discretion to award fees for hours not properly

documented. Stewart, 987 F.2d at 1453. “[H]ours may be reduced by the court

where documentation of the hours is inadequate; if the case was overstaffed and

hours are duplicated; if the hours expended are deemed excessive or otherwise

unnecessary.” Chalmers, 796 F.2d at 1210.



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Having determined that Defendant is entitled to “reasonable” attorney fees,

the Court will allow Defendant the opportunity to supplement the record with

detailed time records justifying the hours claimed in this matter. Correspondingly,

the Plaintiff will have an opportunity to scrutinize those records and file a

responsive brief.

Simultaneously, the Court encourages the parties to come to a stipulated

resolution of the amount of fees reasonably owed by Plaintiff.

C. Motion for Sanctions Pursuant to 28 U.S.C. § 1927(ECF No. 78)

Title 28, U.S.C. § 1927 provides in pertinent part that

[a]ny attorney . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

28 U.S.C. § 1927. “The filing of a complaint may be sanctioned pursuant to Rule

11 or a court’s inherent power, but it may not be sanctioned pursuant to § 1927.”

In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 435 (9th Cir. 1996). Section

1927 sanctions require a finding of recklessness or bad faith. Id. at 436.

Defendant moves for sanctions pursuant to 28 U.S.C. § 1927 and the Court’s

inherent authority, arguing that Plaintiff was reckless in its undertakings,

multiplying the proceedings, showing bad faith, and concealing a real party in

interest. ECF No. 78 at 2-3. Plaintiff contends that it was bad faith to proceed



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with the First Amended Complaint in spite of warnings about Rule 11 and false

positives from the investigation, as well as declining to examine Defendant

Lamberson’s computer. Id. at 3. The Court notes that section 1927 sanctions are

unavailable for complaints. See Keegan, 78 F.3d at 435. Accordingly, the Court

declines to sanction Plaintiff for its First Amended Complaint.

Defendant argues that Plaintiff served summons after its time for service

expired and before any order for an extension had issued, and that this delay in

seeking summonses and serving Defendant Lamberson after time expired were

multiplications undertaken in bad faith. ECF No. 78 at 4. Defendant provides no

explanation about how a delay is a multiplication within the meaning of section

1927.

As Plaintiff points out, Defendant cites egregious facts and outcomes from

other cases in other jurisdictions. But there simply is no evidence in this case of

the kind of bad faith that warrants sanctions under section 1927 or the Court’s

inherent authority. Accordingly, the Court declines to award sanctions under

section 1927.

D. Motion for Sanctions Pursuant to Fed. R. Civ. P. 11 (ECF No. 80)

Defendant Lamberson moves for sanctions pursuant to Fed. R. Civ. P. 11 for

Plaintiff’s failure to withdraw its First Amended Complaint (ECF No. 3). ECF No.

80 at 2. Defendant argues that Plaintiff’s counsel, Maureen VanderMay, failed to



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undertake reasonable inquiry in pursuing Plaintiff’s case. Id. Plaintiff and its

current counsel, as well as Maureen VanderMay, have responded to the motion.

Ms. VanderMay maintains that Defendant’s motion should be denied because he

has failed to satisfy the procedural and substantive requirements of Rule 11 and has

failed to show that it is Ms. VanderMay who has unreasonably and vexatiously

multiplied the proceedings in this matter. Plaintiff also opposes this motion,

arguing that Defendant has made an insufficient showing that Rule 11 sanctions

are warranted. The Court agrees with Ms. VanderMay.

“Rule 11 imposes a duty on attorneys to certify that all pleadings are legally

tenable and well-grounded in fact; it governs only papers filed with the court.”

Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir. 1997). The

Ninth Circuit has “held that ‘an attorney violates [R]ule 11 whenever he signs a

pleading, motion, or other paper without having conducted a reasonable inquiry

into whether his paper is frivolous, legally unreasonable, or without factual

foundation.’” Keegan, 78 F.3d at 434 (quoting Unioil, Inc. v. E.F. Hutton & Co.,

809 F.2d 548, 557 (9th Cir. 1986)). An attorney is subject to Rule 11 sanctions

when, among other reasons, he presents to the court “claims, defenses, and other

legal contentions [not] warranted by existing law or by a nonfrivolous argument

for the extension, modification, or reversal of existing law or the establishment of

new law.” Fed. R. Civ. P. 11(b)(2).



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1. Rule 11’s Procedural Requirements

“Rule 11(c)(1)(A) provides strict procedural requirements for parties to

follow when they move for sanctions under Rule 11.” Radcliffe v. Rainbow Const.

Co., 254 F.3d 772, 788 (9th Cir. 2001). These procedural requirements provide

that

[a] motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets.

Fed. R. Civ. P. 11(c)(2). “[B]efore sanctions may be imposed upon a party there

must be ‘sufficient, advance notice of exactly which conduct was alleged to be

sanctionable.’” Foster v. Wilson, 504 F.3d 1046, 1052 (9th Cir. 2007) (quoting In

re DeVille, 361 F.3d 539, 549 (9th Cir. 2004)). The Advisory Committee Notes

clarify that “the purpose of Rule 11 sanctions is to deter rather than to compensate,

and that the 21-day period is “intended to provide a type of ‘safe harbor’ against

motions under Rule 11 in that a party will not be subject to sanctions on the basis

of another party’s motion unless, after receiving the motion, it refuses to withdraw

that positio.” Fed. R. Civ. P. 11 advisory committee’s note. The Advisory

Committee went on to note that

[t]o stress the seriousness of a motion for sanctions and to define precisely the conduct claimed to violate the rule, the revision provides



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that the “safe harbor” period begins to run only upon service of the motion. In most cases, however, counsel should be expected to give informal notice to the other party, whether in person or by a telephone call or letter, of a potential violation before proceeding to prepare and serve a Rule 11 motion.

Fed. R. Civ. P. 11 advisory committee’s note. Thus, a party wishing to impose

sanctions must state with clarity the basis for the motion, serve that motion, and

wait twenty-one days.

Here, Defendant Lamberson served a document captioned “Motion for

Sanctions,” on October 11, 2013, which very generally states the following:

Pursuant to Fed. R. Civ. P. 11(b)(4), the moving Defendant requests monetary sanctions sufficient to cover costs and attorneys’ fees to date, as well as to deter the reckless behavior of the Plaintiff, plus equitable sanctions of dismissal with prejudice of the action against him. This Motion is brought pursuant to Fed. R. Civ. P. 11(c) and this Court’s Local Rules. The Motion is Supported by a Memorandum in Support of Motion for Sanctions, the Declaration of J. Christopher Lynch, the Declaration of Ryan Lamberson, and a Proposed Order.

ECF No. 81-1. This motion contains no specific description of the basis for the

sanction. Though the motion states that it is supported by a memorandum and a

declaration, these documents were not included in the exhibits supplied to the

Court, and Ms. VanderMay declares that these documents were not attached to the

motion that was served on her. See ECF No. 84. Defendant argues that the letter

accompanying the motion served on October 11, 2013, explains the baselessness of

the First Amended Complaint and, thus, there was sufficient notice of what



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conduct was alleged to be sanctionable. ECF No. 93 at 9. This letter states, in

relevant part, the following:

We are concerned with the representations made to the court about the accused “infringing” activity. We see the reference in your pleadings . . . that your investigation shows that a certain IP address assigned to Mr. Lamberson “was observed infringing plaintiff’s motion picture at 04:39:20pm on 12/02/2012.” As we understand BitTorrent, the times listed in the Amended Complaint may indicate that some activity regarding a hash associated with the movie may have occurred on the appointed IP address – but that activity may be simply the passing of a bit of the movie, and not necessarily the delivery (or re-sending) of the entire work. Both Section 106 and Section 107 recognize that ephemeral passage of a bit of work is not-infringing, and even if so, may be fair use. So how do the Amended Complaint’s references to these precise dates and times work? . . . . Given our clients’ frank innocence – i.e. that they never heard of your clients’ movies and never acted to copy them – there is only one conclusion to draw: that your pre-filing investigation and use of the Subpoena process are not sufficient to name Mr. Ryan Lamberson nor Staff Sgt. Anthony Ades as copyright infringement defendants, nor as having any secondary copyright infringement liability. FRCP 11 requires an adequate investigation to identify a copyright infringer or to accuse a person of secondary liability, but here, there is no evidence that these people did anything unlawful – no evidence they copied and no evidence they had a relationship with any identifiable copyist sufficient to meet the established tests for secondary liability under Title 17.

ECF No. 81-1 at 4-5.

In the motion before the Court, Defendant claims that Ms. VanderMay,

Plaintiff’s initial counsel, violated Rule 11 when she signed a pleading that was



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baseless and made without reasonable inquiry because it did not include any

copyright certificate, had no witnesses to support the allegations, and the law did

not support copyright liability of innocent ISP subscribers. ECF No. 80 at 9.

Defendant’s October 11, 2013 motion and accompanying letter simply do not with

sufficient specificity identify the basis for the Rule 11 sanctions. Nor is it clear

that the letter—which contains the only hint of specificity as required under Ninth

Circuit case law—was “served” as required under the rule.

First, neither the letter nor the motion mention the copyright certificates.

Thus, Ms. VanderMay had no notice that she might be subject to Rule 11 sanctions

on those grounds. Thus, the Court declines to impose Rule 11 sanctions for failure

to include the copyright certificate because Ms. VanderMay did not have notice of

this argument as required by Rule 11.

Second, the letter states only very summarily that Defendant is accusing Ms.

VanderMay of failure to investigate. The letter, instead of specifically pointing out

where Ms. VanderMay failed to investigate, generally states that Defendant is

innocent and asks questions (“How does the Amended Complaint’s references to

these precise dates and times work? Are they evidence of actual copying . . . or are

the times associated with the ephemeral transit of some bit of the work, which

might not be infringement in any manner?”). This is simply insufficient for the

Court to impose Rule 11 sanctions, a serious remedy.



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Furthermore, the purpose of sanctions is to deter subsequent abuses; “[t]his

policy is not well served by tolerating abuses during the course of an action and

then punishing the offender after the trial is at an end.” In re Yagman, 796 F.2d

1165, 1183 (9th Cir. 1986), amended on denial of reh'g, 803 F.2d 1085 (9th Cir.

1986). Here, the motion for sanctions was only filed with the Court following the

dismissal of the case.

Accordingly, Defendant’s motion for Rule 11 sanctions fails on procedural

grounds.

2. Rule 11’s Substantive Requirements

When, as here, a “‘complaint is the primary focus of Rule 11 proceedings, a

district court must conduct a two-prong inquiry to determine (1) whether the

complaint is legally or factually baseless from an objective perspective, and (2) if

the attorney has conducted a reasonable and competent inquiry before signing and

filing it.’” Holgate v. Baldwin, 425 F.3d 671, 675-76 (9th Cir. 2005) (quoting

Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th Cir. 2002)) (internal quotations

and citation omitted). “As shorthand for this test, we use the word ‘frivolous’ ‘to

denote a filing that is both baseless and made without a reasonable and competent

inquiry.’” Id. (quoting Keegan, 78 F.3d at 434).

Defendant maintains that Ms. VanderMay, Plaintiff’s counsel at the time,

signed a pleading that was baseless and made without reasonable inquiry because it



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did not include any copyright certificate, had no witnesses to support the

allegations, and the law did not support copyright liability of innocent ISP

subscribers. ECF No. 80 at 9. Defendant also argues that the fact that Plaintiff’s

second counsel voluntarily dismissed the complaint suggests that Ms. VanderMay

did not conduct a reasonable inquiry before filing the complaint. Id. at 10.

The Court declines to consider Ms. VanderMay’s action in other cases, to

which Defendant refers. See, e.g., ECF No. 93 at 6. This is not particularly

relevant to Ms. VanderMay’s action in the case now before the Court.

Nor does the Court find Ms. VanderMay’s refusal to examine Mr.

Lamberson and his computer dispositive of the question of whether Rule 11

sanctions should be imposed. As Ms. VanderMay argues, Defendant provides no

authority establishing that an interview of a defendant and an examination of a

computer constitute the “minimum objective standard” of an investigation. See

ECF No. 91 at 8. Ms. VanderMay provided evidence that an investigator had

“witnessed” Mr. Lamberson’s IP address with a small piece of Plaintiff’s motion

picture. While the Court agrees with Defendant that perhaps this is ultimately

insufficient to “win at trial,” ECF No. 93 at 7, it is not probative of Ms.

VanderMay’s disregard for her duty to investigate in good faith.

Accordingly, Defendant’s motion for Rule 11 sanctions fails on substantive

grounds as well.



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IT IS HEREBY ORDERED:

1. Defendant’s Motion for Attorney Fees (ECF No. 75) is GRANTED in

part and reserved in part. Defendant shall supplement the record with

detailed time records justifying the hours claimed in this matter no later

than November 21, 2014. Plaintiff may file a responsive memorandum

within 14 days after service. Defendant may file a reply memorandum

within 7 days after service of the response. The Court will set this matter

for hearing without oral argument on December 19, 2014.

2. Defendant’s Motion for Sanctions Pursuant to 28 U.S.C. § 1927 (ECF

No. 78) is DENIED.

3. Defendant’s Motion for Rule 11 Sanctions (ECF No. 80) is DENIED.

The District Court Executive is hereby directed to enter this Order and

provide copies to counsel.

DATED October 31, 2014.

THOMAS O. RICE United States District Judge


Doc 99 Order Re Def's Post-Dismissal Motions

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Transcript of Doc 99 Order Re Def's Post-Dismissal Motions